(Im)plausible legality: the rationalisation of human rights abuses in the American ‘Global War on Terror’

Abstract

American government memoranda authorising controversial interrogation, detention, and surveillance practices raise questions about the role of legality in shaping post-9/11 counterterrorism. Have policy makers ignored the law and declared a ‘state of exception’? Alternatively, have they attempted to covertly evade rules through ‘plausible deniability’? This article suggests that the ‘Global War on Terror’ has been characterised by a distinctive relationship between legality and security policy. Human rights violations have become official government policy, publicly justified and legally rationalised by top administration lawyers. Yet, for the most part, the law has not been overtly suspended in favour of unmitigated sovereign power. Rather, policy makers have pursued a strategic doctrine of ‘plausible legality’ aimed at securing immunity and legitimacy for abuses, an approach epitomised by the legalisation of torture.